Keeping Secrets from Congress

When government information is classified or otherwise withheld from release, the possibility of government accountability to the public is undermined.  But when the executive branch withholds crucial information from Congress, that may pose an even more fundamental challenge to democratic governance.

“The administration has refused to share Presidential Policy Directive 11 (PPD 11) with the Congress,” said Sen. Richard Lugar last year at a hearing of the Senate Foreign Relations Committee which has just been published.  PPD 11 is the Obama Administration document that set the terms of reference for the Nuclear Posture Review Implementation Study, which will dictate the future size and configuration of the U.S. nuclear arsenal.

Sen. Lugar voiced a polite objection to this unilateral act of Obama Administration secrecy:  “I simply would say that our country is strongest and our diplomacy is most effective when nuclear policy is made by deliberate decisions in which both the legislative and executive branches fully participate.”

The withholding of presidential directives from Congress is not a new practice.  A 1992 investigation by the General Accounting Office found that Congress had not been routinely notified of the preparation or issuance of national security directives and that none of the relevant congressional committees “are regularly receiving copies” of such directives.

It is known that presidential directives can be used to establish national policy, to direct the implementation of policy, and to authorize the commitment of government resources. But without access to detailed information about the directives, GAO reported in 1992, “it is impossible to satisfactorily determine how many NSDs [national security directives] issued make and implement U.S. policy and what those policies are.”

On the other hand, unlike many executive orders, presidential directives “do not appear to be issued under statutory authority conferred by Congress and thus do not have the force and effect of law,” GAO said. Certainly such directives cannot limit congressional authority or power to legislate.

Yesterday eleven Senators wrote to President Obama to ask him to direct the release to Congress “the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.”

“It is vitally important… for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards,” the Senators wrote.

Later in the day, Mike Isikoff of NBC News obtained a confidential Department of Justice White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” (See other reporting and commentary from NY Times, WashPost, Politico, Emptywheel and ACLU.)

NBC said the document had been “provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.”  This non-disclosure condition, now abrogated, is difficult to understand on national security grounds, but easier to comprehend as an attempt to manage or evade public controversy.

At any rate, the government’s legal argument, such as it is, is now on the public record.  The most important task before Congress is not to plead for release of additional, underlying source documents, but to respond as a legislative body to the Administration’s now-public assertion of its position.  To do nothing is to endorse it.

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